TORTURE AND TRUTH
America, Abu Ghraib, and the War on Terror
By Mark Danner.
New York Review. 580 pp. Paperback, $19.95

MARK DANNER'S "Torture and Truth"
is two books in one. The first is a collection of five essays originally
published in the New York Review of Books. Two of the essays
appeared in 2003 and are prescient about the quagmire that has since enveloped
U.S. forces in Iraq. Still, only devoted Iraq junkies need to read them.
Three more powerful articles written this year on the methods of interrogation
used on prisoners at Abu Ghraib (and elsewhere) in the Bush administration's
"global war on terrorism" express what has become almost universal
dismay and outrage at the treatment revealed by the now-famous photographs
(also reprinted in the book).

"What happened at Abu Ghraib, whatever it was, did not depend on
the sadistic ingenuity of a few bad apples," writes the prizewinning
author of previous books on political violence and war in Haiti and El
Salvador. "[P]rocedures that 'violated established interrogation
procedures and applicable laws' in fact had their genesis not in Iraq
but in interrogation rooms in Afghanistan and Guantanamo Bay, Cuba --
and ultimately in decisions made by high officials in Washington."

Key to Danner's argument is his careful analysis of relevant government
documents recently disclosed, often through leaks, that make up the book's
second part. Because these are fuller versions of post-Abu Ghraib investigation
reports that have appeared elsewhere, the book is essential reading for
Americans who want to know how the United States has careened into chaos
-- moral, political and organizational -- over its methods of interrogating
detainees around the world. Some may prove particularly relevant to the
nomination of White House counsel Alberto R. Gonzales to succeed Atty.
Gen. John Ashcroft. Gonzales asked for the now-notorious memorandum from
the Justice Department (also reprinted here) justifying the president's
power to order torture, and he pronounced aspects of the Geneva Convention
on treatment of prisoners of war "obsolete" and "quaint."

One cannot understand the post-Abu Ghraib reports outside the context
of the earlier memorandum, especially those prepared by the Justice Department's
Office of Legal Counsel before the outbreak of hostilities in Iraq but
after the invasion of Afghanistan. The first group of seven memoranda
explores the reach of the Geneva Convention; especially interesting are
significant concerns expressed by the State Department in response to
the dismissive arguments by Gonzales. A second set of 14 memoranda, really
the emotional heart of the book, considers the question "What is
torture?"
An Aug. 2, 2002, memorandum to Gonzales from the Office of Legal Counsel
(signed by Jay S. Bybee, who now sits on the 9th Circuit Court of Appeals)
offered a hyper-legalistic definition of torture and suggested that the
Constitution gives the president the power to order the use of torture
even though that is barred by both international law and U.S. congressional
statute.

Thus, it advised Gonzales (and therefore the president) that torture
means the imposition of "excruciating" pain. And it must be
"equivalent to the pain that would be associated with serious physical
injury so severe that death, organ failure, or permanent damage resulting
in a loss of significant body function will likely result." What
the memorandum calls the "mere infliction of pain or suffering on
another," though it may be "inhuman and degrading" (and
also prohibited by the United Nations Convention, signed by the United
States), is not "torture"; as the "mere" suggests,
such treatment is of no concern. To be a bit more fair to the memo's authors,
they point out that although Congress has defined "inhuman and degrading"
as conduct that would violate the Constitution's prohibition of "cruel
and unusual punishment," the federal courts have been unwilling to
invoke the constitutional provision to protect prisoners against brutal
treatment in U.S. jails.

Indeed, it is noteworthy that several of the military police officers
implicated in the Abu Ghraib incidents are prison guards in civilian life.
An especially revealing appendix to the Abu Ghraib investigation report,
by the commission headed by former Secretary of Defense James Schlesinger,
refers to a famous 30-year-old Stanford University social psychology experiment
that demonstrated the propensity of students arbitrarily assigned the
role of "guards" to engage in remarkably abusive behavior toward
their "prisoner" classmates. (The experiment was called off
six days into the planned two weeks.) Very tight command and control is
necessary to prevent abuse, but that was nonexistent at Abu Ghraib.

It is possible that the Justice Department arguments are legally defensible,
if morally repulsive. Congress may deserve a full measure of blame: When
it considered ratifying the United Nations Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment, congressional leaders
insisted on a definition of torture that used adjectives like "severe,"
"prolonged" and "imminent." For example, the "threat
of imminent death" is forbidden, as is "the threat that another
person [such as a member of the detainee's family] will imminently be
subjected to death [or] severe physical pain or suffering.... "

For better and worse, the best law schools teach their students to run
with such adjectives when advocating for a client. The legal counsel's
memo is, in its way, a model of such advocacy. By defining torture in
such an extreme way, the memo empowered President Bush (and others in
his administration) to say that what they were authorizing was not really
torture, even if most lay persons would define it as such.

The book's last section includes the Schlesinger commission report and
the highly critical findings by Army Maj. Gen. Antonio M. Taguba, which
were written before the infamous Abu Ghraib photos were leaked to the
public. Danner properly criticizes the Schlesinger report for failing
to hold the Pentagon's civilian leadership responsible for Abu Ghraib
and other similar breaches of law and morality, but anyone who reads that
report should finish with increased confidence in the professional military.
The so-called Jones/Fay report, named for two army generals appointed
to conduct their own independent investigation and also included here,
conveys barely concealed rage over the management of the interrogation
phase of the war, which was troubled by inconsistent messages from Washington,
an inadequate number of trained military personnel, the vulnerability
of Abu Ghraib to insurgent attack, the outsourcing of interrogation to
civilian contractors and the CIA's indifference to law, among other factors.

During their presidential campaigns, neither Bush nor Sen. John F. Kerry,
for quite different reasons, wished to confront the awful truth contained
in these materials. One can only hope that these reports are not treated
as "last year's news." Even though written far less felicitously,
they are every bit as important as the 9/11 Commission's report.

Sanford Levinson, a professor at the University of Texas at Austin,
is the author of "Constitutional Faith" and "Written in
Stone" and editor of "Torture: A Collection."